Hoisted from the archives: Cracks in the Maduro machine

I wrote this on April 4th and then forgot about it. I am now exhuming it for those who are interested.

Short version of recent Venezuelan events:

1. The Supreme Tribunal, packed with regime loyalists, invalidates every legislative action.
2. For reasons unclear, the Tribunal goes further and abolishes the legislature.
3. The Tribunal reverses action (2), but makes it clear that it will continue to hamstring the legislature.

Longer version:

1. In December 2015, the opposition wins the legislative elections; they get 112 out of 167, for a two-thirds supermajority.
2. Candidates of the ruling party from opposition-controlled Amazonas sue over an alleged tape of someone in the state government offering money for votes. The Supreme Tribunal annuls the election of three opposition deputies. This decision is of questionable constitutionality, but I am an American in the age of Bush v. Gore and probably should not throw stones. I invite Canadian readers to do so in comments. 
3. The opposition says “screw you”  to the Tribunal. That was stupid.
4. The Tribunal holds the legislature in contempt of court and invalidates all its actions. The deputies in question resign, but the legislature refuses to approve a formal agreement stripping them of their offices. 
5. The Tribunal, unilaterally, not as the result of a case, issues two very strange decrees (155 and 156, no longer on their website, but partially translated below):
   1. It is ordered that the President of the Bolivarian Republic of Venezuela, in accordance with Article 337 and Decree no. 113 of March 20, 2017, among others, shall take such international measures as he deems appropriate and necessary to safeguard the constitutional order, as well governability fo the country, as well as, in the exercise of its constitutional powers, take such civil, economic, military, criminal, administrative, political, juridical and social actions as it deems appropriate and necessary to avoid unrest, and in the context of the state of emergency and in the face of contempt and continued legislative inaction by the National Assembly, exceptionally revise all substantive and secondary legislation ...
   2. ... this Constitutional Chamber resolves that there are no impediments preventing the national executive from establishing joint ventures in the spirit of Article 33 of the Hydrocarbons Organic Act ... as long as the situation of contempt and nullification of acts by the National Assembly persists, this Constitutional Chamber will guarantee that parliamentary functions will be exercised by this Chamber or whatever body that it puts in place in order to ensure the rule of law. 
6. On March 28th, the Tribunal turns around and issues two more decrees, clarifying that legislators will not be stripped of their immunity under Decree 155 nor lose their legislative power to the Tribunal under Decree 156.

What seems to have happened is that the people within the Socialist Party thought these actions were a bridge too far and forced Maduro to walk it back. That assumes, of course, that Maduro was responsible; this easily could have been the Tribunal going off the reservation. 

Plus, Maduro keeps his authority over oil fields and other assets. Not that it matters; everything he does is still subject to being overturned by the next government. But at least he can now pretend to have the power to sign stuff should any foreign companies want to take the risk. 

Comments

[FS]

"everything he does is still subject to being overturned by the next government". How sure are you about that? In particular, say this govt issues a bond. Will they try to overturn the bond (i.e., claim its invalid)? My understanding is that a U.S. court is unlikely to buy this argument from a new Vene govt...

[Noel Maurer]

I was thinking about oil contracts, not bonds. What might happen to new debts issued under Maduro is an interesting question!

As you aver, a new Venezuelan government could claim odious debt. It wouldn't be a great case, but it would be a case! You could claim that any new issue violate the current constitution. Article 312 is pretty clear that "public credit transactions shall require a special law authorizing them."

Right now, though, the legislature isn't approving anything.

It's true that American courts haven't been all that open to this sort of reasoning in the past. But Ecuador's case was weak and abstruse. This seems a lot more clear cut! Doesn't mean that it would win, but I'd give it much higher chances than most.

No?